Trevor Thomas Roberts and Others v The Minister of Foreign Affairs and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 15 October 2007 |
| Neutral Citation | [2007] UKPC 56 |
| Court | Privy Council |
| Docket Number | Appeal No 70 of 2006 |
| Date | 15 October 2007 |
[2007] UKPC 56
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
[Delivered by Lord Hope of Craighead]
Their Lordships announced at the end of the hearing of this appeal that, for reasons to be given later, they would humbly advise Her Majesty that the appeal should be dismissed with costs. The following are the reasons for their decision.
The facts
The appellants are all citizens of The Bahamas. They were arrested in the early hours of 23 June 2004 following a request by the United States of America for their extradition on suspicion of having committed drug trafficking offences. They were taken to the Magistrates Court in Nassau where they were informed that they had been arrested pursuant to a provisional warrant issued by a magistrate in the light of that request. Their applications for bail were refused. They were remanded in custody in HM Prison, Fox Hill to await a preliminary inquiry into the extradition request and production by the Requesting State of particulars.
Arrangements for extradition between the Commonwealth of The Bahamas and the United States of America are the subject of an Extradition Treaty ("the Treaty") which was entered into by their respective Governments on 9 March 1990. It replaced an Extradition Treaty between the United Kingdom and the United States of America which was signed in London on 22 December 1931. The 1931 Treaty was in force when The Bahamas achieved independence in 1973. It remained in force until the entry into force of the Treaty of 1990. The procedure for carrying into effect the obligations of The Bahamas under the Treaty of 1931 was contained in the United Kingdom's Extradition Acts 1870 and 1873. Those Acts have now ceased to have effect in The Bahamas. New provision for the extradition to and from Commonwealth countries and foreign states of persons accused or convicted of certain offences, and for the procedure to be followed, was made by the Extradition Act 1994 ("the 1994 Act"). The 1994 Act was brought into force on 19 September 1994.
By originating motions dated 30 September 2004 the appellants sought, among other matters, declarations that the Treaty together with the Extradition (Application to the United States) Order 1994 ("the United States Order") and the Extradition (Application to Foreign States) Order 1994 ("the Foreign States Order"), made to give effect to the Treaty in the domestic law of The Bahamas, are of no binding force and effect and are a nullity. They also sought a declaration that, as the Treaty had not been laid before Parliament and its terms approved prior to the Bill which became the 1994 Act, the Treaty and the Act were both unconstitutional, null and void and of no effect. They sought a further declaration that they were hindered in the enjoyment of their freedom of movement without their consent by reason of their remand in custody and that their detention was unlawful in contravention of articles 25(2)(d) and (e) of the Constitution of the Commonwealth of The Bahamas. They also sought habeas corpus and damages.
On 24 August 2004 counsel for the Requesting State presented to the magistrate particulars which that State had produced and an authority to proceed signed by the Minister of Foreign Affairs dated 19 August 2004. By orders dated 30 September and 22 October 2004 Isaacs J stayed the extradition proceedings pending determination of the appellants' applications. He refused their applications for bail. They remain in custody.
After various procedural steps, a hearing on the appellants' applications took place before Isaacs J on various dates between 24 January and 17 February 2005. On 10 May 2005 he issued a judgment in which he found that the Minister of Foreign Affairs was empowered to enter into the Treaty and that the 1994 Act both in manner and form did not lack the attributes of a law validly made for the peace, order and good government of The Bahamas. But he also found that article 18 of the Treaty contained a permanent financial obligation, the effect of which was that the Treaty had to be laid before Parliament and its terms approved as required by article 130 of the Constitution and the Financial Administration and Audit Act ("the FAAA"). He held, on the facts, that the terms of the Treaty had not received the prior approval of Parliament. He refused nevertheless to make any of the declarations sought by the appellants because of their implications for the international relations of the Government of The Bahamas.
The respondents challenged Isaacs J's findings by notice of appeal dated 11 May 2005. The appellants, in response, challenged that part of Isaacs J's judgment in which he refused to grant the declarations sought. The appeal was heard by the Court of Appeal (Sawyer P, Ganpatsingh and Ibrahim JJA) on 21 and 22 June 2005. On 22 June 2005, for reasons that were given in writing on 2 November 2005, the Court of Appeal allowed the appeal and ordered that the committal proceedings should continue with expedition before the magistrate. On 27 March 2007 the Court of Appeal gave final leave to appeal against its decision to their Lordships' Board. The appellants' petitions seeking a stay of the committal proceedings against them were dismissed.
The issues
Mr Glinton renewed before the Board both orally and in writing various arguments which he had submitted to Isaacs J and to the Court of Appeal. For the purposes of this judgment they can be grouped together as raising the following questions:
(1) The Treaty
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(1) whether the Minister of Foreign Affairs was vested with the necessary authority to conclude the Treaty with the USA on behalf of The Bahamas, and whether the Treaty had the approval of Parliament ("the Treaty");
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(2) whether, having regard to article 18 of the Treaty and section 17 of the FAAA, the prior approval of Parliament for any necessary expenditure was required for the Treaty to be enforceable in The Bahamas ("Financial approval");
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(3) whether the appellants' rights under articles 19(1)(g) and 25 of the Constitution have been violated by their detention to await a decision on their extradition under the Treaty to the USA ("Constitutional protection");
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(4) whether the appellants were lawfully arrested, and whether they had a fair hearing in the Court of Appeal ("the proceedings").
Mr Glinton accepted that the Treaty was entered into by the Minister of Foreign Affairs acting on behalf of the Government. But he submitted that the Minister had no power to enter into treaties. Under article 71(1) of the Constitution executive authority of The Bahamas was vested in Her Majesty, on whose behalf in terms of article 71(2) it was exercisable by the Governor-General. His express authority was necessary for a treaty to be entered into. He also submitted that, as legislation was necessary to enable effect to be given to a treaty in domestic law, Parliament had to pass an enabling statute before it was ratified. He maintained that the Treaty was null and void because, although it was laid before the House of Assembly, it was not laid before both Houses of Parliament and had not been incorporated in the schedule of any enactment. Even if the minister had power to ratify it, the Treaty had not been approved either before or after the event by Parliament.
Their Lordships find no substance in either of these arguments. They agree with Isaacs J that article 77 of the Constitution permits the Governor-General to delegate his executive authority to a Minister of the Government. Article 77 provides:
"The Governor-General, acting in accordance with the advice of the Prime Minister, may, by directions in writing, charge the Prime Minister or any other Minister with responsibility for any business of the Government of The Bahamas, including the administration of any department of Government:
Provided that a Minister appointed from among members of the House of Assembly shall be charged with responsibility for finance."
Article 79(1) provides that, in the exercise of his functions, the Governor-General acts in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet.
Mr Glinton did not suggest that these provisions did anything other than confer the widest powers on the Governor-General to enable the business of the government of The Bahamas to be carried on efficiently by the executive. By instrument dated 19 January 1989 the Governor-General vested responsibility for extradition and treaty succession in the Minister of Foreign Affairs. Delegation in general terms to the Minister made it unnecessary for the Governor-General to describe in detail each and every act that the Minister might do within this area of responsibility. It follows that the then Minister of Foreign Affairs was vested with the necessary authority to conclude the Treaty with the United States of America on behalf of The Bahamas on the date when the Treaty was entered into. It was ratified by the United States of America on 18 May 1992. The Court of Appeal was not told whether any steps were taken to ratify it by the Government of The Bahamas before the relevant Orders were laid before Parliament. But the presumption is for regularity of matters of this kind. As they have not been provided with any evidence to the contrary, their Lordships proceed upon the basis that the Treaty was duly...
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